The High Court has declared the Sh12 billion Ngong-Riruta metre gauge railway project unconstitutional, finding that the government violated several legal and constitutional requirements in planning and implementing the project.
In a judgment delivered on Friday, Justice Gregory Mutai ruled that the project was undertaken without parliamentary approval, a competitive procurement process, a feasibility study and meaningful public participation, rendering its implementation unlawful.
Despite noting that construction is already about 40 per cent complete, the judge declined to permanently stop the project, instead directing the government to comply with the law before any further work can proceed.
Justice Mutai held that authorities must first obtain parliamentary approval, carry out a fresh procurement process where necessary, undertake a feasibility study and engage affected communities through meaningful public participation.
"The use of the Railway Development Levy Fund (RDLF) for the project before March 27, 2026, was unconstitutional, and the subsequent amendment to the law cannot be applied retrospectively to validate earlier constitutional violations," the judge ruled.
The decision arose from a petition filed by Busia Senator Okiya Omtatah and the Karen Langata District Association, who challenged the legality of the project's funding and implementation.
The petitioners argued that the government unlawfully relied on the Railway Development Levy Fund to finance the railway and failed to involve residents and other stakeholders before construction commenced.
Justice Mutai agreed that the public participation undertaken after construction had already begun could not remedy the constitutional defects surrounding the project.
The court also criticised Kenya Railways Corporation (KRC) and other government agencies for failing to disclose crucial project documents despite previous court orders compelling their release.
According to the judgment, transparency is a constitutional obligation, particularly for publicly funded infrastructure projects, and withholding information undermines accountability.
To regularise the project, the court directed the government to act within 90 days by either conducting a fresh, open and competitive procurement process for the remaining works or proving that the existing contracts meet constitutional standards after full disclosure, competitive benchmarking and parliamentary oversight.
The judge further ordered the government to carry out fresh public participation involving residents' associations, landowners and other stakeholders along the railway corridor. It must also make public the project's feasibility study, route alignment, financing arrangements and procurement records.
Justice Mutai further ordered that conservatory orders issued on January 20, 2026, suspending construction of the railway, will remain in force for one year or until the government fully complies with all the court's directives.
"Consultations undertaken after implementation had already commenced cannot cure the constitutional defects in the project's execution," Justice Mutai observed.
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